Wednesday, September 14, 2022
Margo Schlanger and Betsy Ginsberg (University of Michigan Law School and Yeshiva University - Benjamin N. Cardozo School of Law) have posted Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion Requirement (Case Western Reserve Law Review, Vol. 72, No. 3, 2022) on SSRN. Here is the abstract:
For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people. For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win—regardless of merit. We have seen the result in the wave of litigation relating to the COVID-19 pandemic. Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them. Time and again, courts have thrown cases out based on the PLRA —especially, on the PLRA’s instruction to dismiss civil rights cases unless “such administrative remedies as are available are exhausted” (that is, unless the incarcerated plaintiff worked the complaint all the way through the prison’s or jail’s grievance system).
The pandemic has exposed a particularly egregious problem: the mismatch between a mandate to use internal grievance systems and those grievance systems’ systemic inability to address emergency situations. Here, we propose three solutions. First, incarcerated plaintiffs should be allowed to proceed with their federal lawsuits if the press of an emergency renders a prison’s or jail’s grievance system “unavailable” because it is unable to process their complaint quickly enough to offer any relief. As we describe below, this is already the right answer under existing case law—but so far, many district courts have declined to follow this path. The second proposal focuses on possible actions at the state and local levels, because it is corrections agencies, not the PLRA, that determine what procedures must be exhausted or whether the defense is raised in litigation. Any prison or jail unhappy with allowing incarcerated plaintiffs to proceed in federal court or amenable to allowing them to access court quickly in emergency circumstances could implement working emergency grievance systems. We provide some parameters to guide any such system. In addition, state legislatures could enact legislation forfeiting or waiving the exhaustion defense in cases seeking emergency relief. The third solution addresses the reluctance of district judges to excuse non-exhaustion when they should; we propose that the PLRA be amended to pretermit the “availability” inquiry by eliminating the statutory exhaustion requirement in emergency situations. We offer suggested legislative text to accomplish this end.